NO. 94-024

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

LINDA JOANN HATCH, Individually and as

Conservator of the Estates of Wade Russell

Hatch, J. Adam Hatch, Carson Miles Hatch

and Crystal Marie Hatch, Minors, and CARRIE HATCH,

Plaintiffs and Appellants,

vs.

STATE OF MONTANA DEPARTMENT OF HIGHWAYS,

Defendant and Respondent,

LINDA JOANN HATCH, Personal Representative

of the Estate of J. Calvin Hatch, deceased,

Plaintiff and Appellant,

vs.

STATE OF MONTANA DEPARTMENT OF HIGHWAYS,

Defendant and Respondent,

BRENDA I. DEMERS, a single person and

SANDRA MARIE HOLLISTER, a single person,

Plaintiffs and Appellants,

vs.

STATE OF MONTANA DEPARTMENT OF HIGHWAYS,

Defendant and Respondent.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable John W. Larson, Judge presiding.
COUNSEL OF RECORD:

For Appellant:

Frank B. Morrison, Jr.; Morrison Law offices,

Whitefish, Montana

Jay DeMers, Attorney at Law, Seattle, Washington

Benjamin W. Hilley; Hilley & Loring, Bigfork,

Montana

For Respondent:

Sherman Lohn and Steve Carey; Garlington, Lohn &

Robinson, Missoula, Montana

Filed:

Submitted on Briefs: September 15, 1994

Decided: December 23, 1994
Justice Karla M. Gray delivered the Opinion of the Court

Linda Joann Hatch (Hatch) and Brenda DeMers (DeMers) appeal

from an opinion and order of the Fourth Judicial District Court,

Missoula County, granting partial summary judgment in favor of the

State of Montana Department of Highways. We affirm.

We restate the issues on appeal as follows:

1 . Did the District Court err in granting summary judgment on

the State's liability for Beatty's pulling the snowplow onto the

highway in front of the Hatch vehicle?

2 . Did the District Court err in granting summary judgment on

the State's liability for using a snowplow to remove hardpack snow

and ice from Highway 83?

This lawsuit arose out of an automobile accident occurring on

December 20, 1990. On that date, the Hatch family was traveling

north on Highway 83 in a station wagon driven by Calvin Hatch. The

weather was overcast and cold, and the highway was covered with a

hardpack of snow and ice.

While the Hatch family was traveling north on Highway 83, Lee

Beatty (Beatty), an employee of the Montana Department of Highways

(State), began plowing the highway southbound from the Rainy Lakes

Shop. A piece of heavy equipment called a "motor patrol" usually

is utilized to remove the hardpack snow and ice; motor patrols

travel very slowly and literally cut the snow and ice off the road.

Unlike plows, they discharge excess snow and ice slowly off to the

side; thus, the snow plumes--clouds of snow and ice--created by

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snowplows do not occur.

On the date of the accident at issue here, however, the Rainy

Lakes motor patrol was inoperable and, therefore, Beatty's

supervisor directed him to remove the hardpack with a regular

snowplow. After plowing south for a few miles, Beatty turned the

plow around and began heading north, directly in front of the Hatch

vehicle. Joann Hatch, who had been sleeping, remembers her husband

Calvin commenting on the fact that a snowplow was pulling out in

front of them. Calvin slowed the car from a speed of 45 to 50

miles per hour to 30 to 35 miles per hour to follow the plow. The

accident occurred between 45 seconds and one minute after the plow

pulled onto the highway. Wade Hatch, age fourteen at the time,

recalls that once the plow pulled in front of them it was "icy" and

hard to see.

The accident occurred on an I, s !I curve on Highway 83,

approximately 170 feet north of mile marker 23. Beatty testified

that when he entered the curve, he had to move the plow a couple of

feet to the right in order to remain in his own lane and avoid a

southbound pickup truck driven by DeMers. When Beatty took this

corrective action, the plow bit into the snow berm on the right

side of the road and created a larger snow plume. The Hatch and

DeMers vehicles collided a few moments later. Calvin Hatch died as

a result of the collision, and all other occupants of the Hatch and

DeMers vehicles were injured.

Hatch and DeMers sued the State for negligence, asserting a

number of negligent acts. They claimed that the snow plume blinded

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Calvin Hatch, resulting in the collision, and that the State's

negligent acts caused the accident.

The State moved for, and was granted, summary judgment on its

liability relating to: (1) Beatt y's pulling the plow onto the

highway in front of the Hatch vehicle; and (2) delayed maintenance

of the motor patrol, and the resulting decision to use the snowplow

to remove the hardpack of snow and ice. As to these issues, the

District Court determined that no genuine issue of material fact

existed regarding the requisite proximate cause element, and

concluded that the State was entitled to summary judgment as a

matter of law on these portions of the negligence claim against it.

Beatty's alleged negligence in operating the snowplow after

entering the highway, including speed and overall control of the

plow, remained for trial.

The case was tried to a jury and resulted in a verdict for the

State. Hatch and DeMers appeal from the District Court's grant of

summary judgment to the State on those portions of their negligence

claim related to Beatty's pulling the plow onto the highway in

front of the Hatch vehicle and the decision to use the snowplow to

remove the hardpack.

Regarding Beatty's entry onto the highway in front of the

Hatch vehicle, appellants assert that the plow "trapped" the Hatch

vehicle in the snow plume, and that the reduced visibility from the

plume caused the collision. Regarding the use of the snowplow on

the hardpack, appellants contend that the selection of a plow was

negligent because a plow is difficult to control when used to

5
remove hardpack snow and ice. They argue that Beatty's difficulty

in controlling the plow while removing the hardpack caused him to

have to change course to avoid DeMers, thereby hitting the snow

berm on the right side of the highway and creating a larger plume

of snow. In essence, appellants argue that these issues were so

intertwined with the remainder of their negligence action that the

District Court's grant of partial summary judgment effectively

prejudiced their ability to try the case.

Summary judgment is proper when no genuine issues of material

fact exist and the moving party is entitled to judgment as a matter

of law. Rule 56(c), M.R.Civ.P. We review an order granting

summary judgment by applying the same criteria as the district

court. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849

P.2d 212, 214.

In a negligence action, a plaintiff must prove four elements:

(1) duty; (2) breach of duty; (3) causation; and (4) damages.

U.S.F. & G. v. Camp (1992), 253 Mont. 64, 68, 831 P.2d 586, 589.

Ordinarily, issues of negligence are questions of fact not

susceptible to summary adjudication. Dillard v. Doe (1991), 251

Mont. 379, 382, 824 P.2d 1016, 1018 (citations omitted). However,

if the defendant establishes the absence of a genuine issue of

material fact as to any one of the elements constituting the cause

of action, and the plaintiff fails to come forward with proof

establishing the existence of a genuine issue as to that element,

summary judgment in the defendant's favor is proper. See White v.

Murdock (Mont. 1994), 877 P.2d 474, 476, 51 St.Rep. 547, 548. Any

6
inferences to be drawn from the factual record must be resolved in

favor of the party opposing summary judgment. Boylan v. Van Dyke

(1991), 247 Mont. 259, 266, 806 P.2d 1024, 1028.

1 . Did the District Court err in granting summary

judgment on the State's liability for Beatty's pulling

the plow onto the highway in front of the Hatch vehicle?

For the purpose of analyzing this issue, we need not address

either the duty or breach of duty elements of appellants' claim

that Beatty pulled onto Highway 83 in front of the Hatch vehicle in

an unsafe manner which constituted a hazard. We focus directly on

the causation element because, even if Beatty breached a duty--

which we do not decide here--the appellants did not establish a

genuine issue of material fact regarding whether such a breach was

the proximate cause of the accident.

The causation element of a negligence claim includes two

components: (1) that the defendant's act is the cause-in-fact of

the injury; and (2) that the injury is the direct or indirect

result, proximately caused by the negligent act. U.S.F.& G., 831

P.2d at 589; Kiger v. State of Montana (lPPO), 245 Mont. 457, 459,

802 P.2d 1248, 1250. Stated differently, proximate cause is an act

or omission which, "in a natural and continuous sequence, unbroken

by any new, independent cause, produces injury, and without which

the injury would not have occurred." Bickler v. Racquet Club

Heights Assoc. (1993), 258 Mont. 19, 23, 850 P.2d 967, 970; quoting

Young v. Flathead County (1988), 232 Mont. 274, 282, 757 P.2d 772,

777. We review the record on summary judgment resolving any

inferences in favor of appellants, as the parties opposing the

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State's motion. See Bovlan, 806 P.2d at 1028.

The following facts relating to causation are not in dispute.

Joanne Hatch admits that in response to the snowplow pulling out in

front of their vehicle, Calvin Hatch was able to keep the car under

control, had no trouble slowing down despite the icy conditions,

and had no trouble keeping the vehicle in his own lane while

following the plow. These facts are confirmed by Wade and Adam

Hatch, ages fourteen and twelve at the time of the accident. Wade

Hatch testified that, when the plow entered Highway 83, his father

slowed down to match the speed of the plow by "applying the brakes

a little bit." More importantly, each alert Hatch passenger

admitted that 45 seconds to one minute elapsed between the plow

pulling out in front of the car and the accident.

Appellants argue that, despite the deposition testimony

establishing that no hazard was created by the manner in which

Beatty entered the highway, they raised a genuine issue of material

fact regarding causation in that "the snowplow was pulled abruptly

in front of the Hatch vehicle and [Calvin Hatch] had to brake in

order to keep from hitting the snowplow" and, as a result, that the

Hatch vehicle was "t-rapped" behind the plow. In essence,

appellants rely on the mere fact that Calvin Hatch braked a little

to slow down behind the plow as raising a genuine issue of material

fact with regard to whether Beatty's entry onto the highway caused

the accident. We disagree.

Stretched to its outer limit, the summary judgment record

before us might be susceptible to a determination that the mere

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entry of the snowplow onto the highway--without regard to the

manner of that entry--was, in and of itself, a cause-in-fact of the

accident. That is, absent the plow being on the highway at all,

the accident would not have occurred; to some, this might be

sufficient to meet the traditional "but for" test incorporated in

the Bickler definition of proximate cause via the language "and

without which the injury would not have occurred." See Bickler,

850 P.2d at 970. Of course, such an interpretation would not

relate in any way to appellants' contention here that it was the

abrupt manner in which Beatty entered the highway that caused the

accident.

The record is clear, however, that Beatty's entry onto the

highway, in whatever manner, was not a proximate cause of the

accident. The relevant deposition testimony is undisputed that

from 45 seconds to one minute elapsed between the plow's entry onto

the highway and the accident, and that Calvin Hatch kept his

vehicle under complete control during that time. Appellants

presented no evidence that he had insufficient time to adjust to

the presence of the snowplow on the highway.

Under such circumstances, we conclude that no genuine issue of

material fact exists regarding whether the accident was the direct

or indirect result of Beatty's entry onto the highway. See

U.S.F.& G., 831 P.2d at 589. Nor does a genuine issue of material

fact exist regarding whether that entry onto the highway produced

injury in a natural and continuous sequence. See Bickler, 850 P.2d

at 970. Absent a genuine issue of material fact on the proximate

9
cause element, therefore, summary judgment in the defendant's favor

is proper. See White, 877 P.2d at 476.

Appellants attempt to interweave this issue with the factual

issues relating to Beatty's alleged negligence in operating the

snowplow. They assert that their inability to present evidence to

the jury regarding the manner of entry onto the highway "gutted"

their case. Nothing could be further from the truth.

It is clear that, whatever the cause of this accident may have

been, the accident was not proximately caused by the manner in

which Beatty entered the highway. Beatty's actual operation of the

plow while on the highway followed the plow's entry thereon.

Beatty's allegedly negligent operation of the plow--including the

speed at which he operated it and his failure to properly control

it--was fully tried to, and rejected by, the jury.

We hold that the District Court did not err in granting

summary judgment on the State's liability for Beatty's pulling the

plow onto the highway in front of the Hatch vehicle.

2 . Did the District Court err in granting summary

judgment on the State's liability for using a snowplow to

remove hardpack snow and ice from Highway 83?

Appellants contend that the State's selection of a snowplow,

which their expert testified via deposition has a tendency to pull

to the left when being used to remove hardpack, was negligent

because it caused Beatty difficulty in controlling the plow.

Because of the difficulty, appellants claim Beatty had to

overcorrect to avoid DeMers and, in doing so, created an even

10
larger plume of snow. They contend that the District Court erred

in granting summary judgment on this claim and, as a result, in

refusing to let the jury hear related evidence.

The existence of a duty is the first element of a negligence

claim; absent the existence of a duty, no negligence claim can be

maintained. See White, 877 P.2d at 476; Geiger v. Montana Dept. of

Revenue (1993), 260 Mont. 294, 297, 858 P.2d 1250, 1252. The

existence of a duty is a question of law. Geiqer, 858 P.2d at

1252.

The State has a duty to exercise ordinary and reasonable care

in maintaining Montana's highways. See Townsend v. State (1987),

227 Mont. 206, 209, 738 P.2d 1274, 1276. For the purpose of this

opinion, we will presume that this duty extends to using the same

degree of care in removing snow from Highway 83. Appellants cite

no legal authority, however, for the existence of a separate duty

by the State to use a particular piece of equipment in meeting its

duty of care regarding highway maintenance. We cannot conclude

that appellants established a duty requiring the State to select a

particular piece of equipment for snow and hardpack removal.

Absent a duty, no breach of duty can be established and no

negligence action can be maintained. Geiser, 858 P.2d at 1252.

Thus, the expert deposition testimony presented to the District

Court during the summary judgment proceedings--to the effect that

the plow, when used for the purpose Beatty was operating it, would

tend to be difficult to control--had no bearing on summary judgment

because of appellants' failure to establish the existence of a duty

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to support this claim.

Similarly, the causation element of a negligence action does

not come into play unless and until a duty and breach have been

established. Even if a duty existed and was breached here,

appellants' effort to establish the necessary causal connection

between the duty to select another piece of equipment to plow the

road and the accident at issue would face the same barriers

addressed in issue number one.

The fact is that, given controlling precedent and the jury's

verdict for the State regarding Beatty's negligence in operating

the snowplow, appellants ultimately could not have prevailed on

their negligence action against the State regarding selection and

use of the plow. The mere creation of a plume by a snowplow,

standing alone, is not sufficient to establish negligence. Wilson

v. Doe (1987), 228 Mont. 42, 740 P.2d 687. Allegations of

negligent operation of the plow, separate and apart from the

creation of the plume, must be alleged and proved. See Wilson, 740

P.2d at 689.

Here, unlike in Wilson, appellants did allege negligence by

Beatty in operating the snowplow. Those alleged negligent acts

related to the speed at which Beatty operated, and his overall

control of, the plow. Appellants came forward with evidence

regarding these acts during the summary judgment proceedings and,

as a result, established genuine issues of material fact as to

Beatty's negligence in operating the plow. For that reason and

relying on Wilson, the District Court properly declined to enter

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full summary judgment for the State. Appellants then presented

their evidence regarding Beatty's alleged negligent operation of

the plow to the jury, and the jury returned a verdict for the

State.

We conclude that the District Court did not err in granting

summary judgment to the State on the issue of its use of a snowplow

to remove the hardpack from Highway 83. Even if error had been

established in that regard, however, the error would be harmless

given the jury's ultimate verdict in the State's favor regarding

the manner in which Beatty operated the snowplow.

Affirmed.

We concur:

,_,.'a*

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Justice William E. Hunt, Sr., dissenting.

I disagree with the majority's conclusion that appellants did

not establish a genuine issue of material fact as to whether

Beatty's entry into the highway was the proximate cause of the

accident.

Linda Hatch testified that she was startled out of a sleep by

the slowing of their car, and her husband's comment that the

snowplow was going to pull out right in front of their car. The

record shows that the snowplow did pull out in front of the Hatchs'

car causing them to slow and trapping them until the accident

occurred. The fact that Calvin Hatch was able to keep the car

under control despite the icy conditions in no way mitigates the

potential negligence of Beatty's entry into the Hatchs' pathway.

The record shows that within 45 seconds to one minute, the accident

occurred after the Hatch's car was blanketed by a snow plume caused

by Beatty's attempt to abruptly withdraw from the wrong lane back

into the correct lane. It is at least a question of material fact

as to whether by pulling in front of and trapping the Hatchs, the

accident which occurred 45 seconds later happened in a natural and

continuous sequence, unbroken by any new, independent cause.

There is nothing in the record or the majority's opinion to

show that respondents met their burden of providing the court with

evidence which excludes any real doubt as to the existence of a

genuine issue of material fact regarding proximate cause. The

record supports a conclusion that as to the issue of proximate

14
cause there exists a genuine issue of material fact that should

have been presented to the jury.

I would reverse the District Court's granting of respondent's

motion for summary judgment.

Justice Terry N. Trieweiler

opinion.

joins in the foregoing dissenting

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December 23, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Frank B. Morrison, Jr.

MORRISON LAW OFFICES

P. 0. Box 1090

Whitefish, MT 59937-1090

Jay DeMers

Attorney at Law

2200 Sixth Avenue, Suite 1250

Seattle, WA 98121

Benjamin W. Hilley

HILLEY & LORING

P. 0. Box 1319

Bigfork, MT 59911

Sherman L.ohn & Steve Carey

GARLINGTON, LOHN & ROBINSON

P. 0. Box 7909

Missoula, MT 59807-7909

David W. Lauridsen

BOTHE & LAURIDSEN

P. 0. Box 2020

Columbia Falls, MT 59912

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA